Ark. Code Ann. § 16-93-303 (2026)
Probation — First time offenders — Procedure
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- When an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the circuit court or district court, in the case of a defendant who previously has not been convicted of a felony, without making a finding of guilt or entering a judgment of guilt and with the consent of the defendant, may defer further proceedings and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the circuit court or district court.
- A sentence of a fine not exceeding three thousand five hundred dollars ($3,500) or an assessment of court costs against a defendant does not negate the benefits provided by this section or cause the probation placed on the defendant under this section to constitute a conviction except under subsections (c)-(e) of this section.
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However, a person who is found guilty of or pleads guilty or nolo contendere to one (1) or more of the following offenses is not eligible for sealing of the record under this subchapter:
- An offense that requires the person to register as a sex offender under the Sex Offender Registration Act of 1997, § 12-12-901 et seq.;
- Public sexual indecency, § 5-14-111;
- Indecent exposure, § 5-14-112;
- Bestiality, § 5-14-122;
- Exposing another person to the human immunodeficiency virus, § 5-14-123; or
- A serious felony involving violence or a felony involving violence as provided in § 5-4-501.
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- Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided.
- This subsection does not require or compel any court of this state to establish first offender procedures as provided in this section and §§ 16-93-301 and 16-93-302.
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- Upon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof, the defendant shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order that shall effectively dismiss the case, discharge the defendant, and seal the record, if consistent with the procedures established in the Comprehensive Criminal Record Sealing Act of 2013, § 16-90-1401 et seq.
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During the period of probation described in subdivision (a)(1)(A)(i) of this section, a defendant is considered as not having a felony conviction except for:
- Application of any law prohibiting possession of a firearm by certain persons;
- A determination of habitual offender status;
- A determination of criminal history;
- A determination of criminal history scores;
- Sentencing; and
- A purpose of impeachment as a witness under Rule 609 of the Arkansas Rules of Evidence.
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After successful completion of probation placed on the defendant under this section, a defendant is considered as not having a felony conviction except for:
- A determination of habitual offender status;
- A determination of criminal history;
- A determination of criminal history scores;
- Sentencing; and
- A purpose of impeachment as a witness under Rule 609 of the Arkansas Rules of Evidence.
- The eligibility to possess a firearm of a person whose record has been sealed under this subchapter and the Comprehensive Criminal Record Sealing Act of 2013, § 16-90-1401 et seq., is governed by § 5-73-103.
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A court as a condition of probation shall order the defendant to:
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- Enroll in and complete a vocational, technical, educational, or similar program if the court finds that the defendant's lack of an employable or marketable skill contributes to the defendant's being unemployed.
- The court may order the person to pay tuition for any vocational, technical, educational, or similar program in installments after the completion of the education or training program.
- If the defendant is on probation at the end of the vocational, technical, educational, or similar program required under subdivision (f)(1)(A) of this section, he or she shall be required to work in suitable employment for the remainder of his or her probation or for three (3) years, whichever occurs earlier; or
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- Work consistently in suitable employment for the entire duration of his or her probation or for three (3) years, whichever occurs earlier.
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History. Acts 1975, No. 346, §§ 2, 3; A.S.A. 1947, §§ 43-1232, 43-1233; Acts 1995, No. 998, § 9; 1999, No. 1407, § 1; 2003, No. 1185, § 219; 2003, No. 1753, § 2; 2007, No. 744, § 2; 2011, No. 570, § 90; 2011, No. 1233, § 1; 2013, No. 1460, § 11; 2015, No. 1198, § 8; 2017, No. 662, § 1; 2019, No. 385, § 1.
Amendments. The 2011 amendment by No. 570 inserted “court” following “judge of the circuit” in (a)(1)(A)(i); and inserted “or sealing” in (a)(1)(B).
The 2011 amendment by No. 1233 added (a)(1)(A)(iii).
The 2013 amendment substituted “sealing” for “expungement” in (a)(1)(A)(iii); rewrote (a)(1)(B) and (a)(3); in (b), substituted “seal” for “expunge” and “the Comprehensive Criminal Record Sealing Act of 2013, § 16-90-1401” for “§ 16-90-901”; in (e), deleted “expunged and” following “been” and substituted “the Comprehensive Criminal Record Sealing Act of 2013, § 16-90-1401” for “§ 16-90-901”.
The 2015 amendment added (f).
The 2017 amendment, in (a)(1)(A)(i), deleted “the judge of” preceding the first occurrence of “the circuit court” and inserted “circuit court or district” near the end; substituted “is not” for “shall not” in (a)(1)(A)(iii); redesignated former (a)(1)(B) as the present introductory language of (a)(1)(B); substituted “one (1) or more of the following offenses” for “a sexual offense as defined by § 5-14-101 et seq. and §§ 5-26-202, 5-27-602, 5-27-603, and 5-27-605” in the introductory language of (a)(1)(B); added (a)(1)(B)(i) through (a)(1)(B)(v); and made a stylistic change.
The 2019 amendment deleted (a)(1)(A)(iii); and added (a)(1)(B)(vi).
Research References
ALR.
Validity of requirement that, as condition of probation, defendant submit to warrantless searches. 99 A.L.R.5th 557.
Validity of condition of probation, supervised release, or parole restricting computer use or internet access. 4 A.L.R.6th 1.
Case Notes
Applicability.
Subdivision (a)(1) of this section applies only to an accused who enters a plea of guilty or nolo contendere prior to an adjudication of guilt; where defendant was adjudged guilty by a jury, the trial court correctly determined that he was not entitled to probation under this section. Baker v. State, 310 Ark. 485, 837 S.W.2d 471 (1992).
Where it was clear this section was not utilized in defendant's prior cases even though the conviction judgment made a passing reference to it, defendant's argument that two prior criminal cases were expunged under this section and could not be used for enhancement purposes was not supported by the record. Baxter v. State, 324 Ark. 440, 922 S.W.2d 682 (1996).
Supreme Court reversed defendant's sentence and remanded for new sentencing because she had entered a plea of not guilty and was adjudicated guilty by the court following a bench trial, and therefore she was ineligible for sentencing pursuant to Acts 1975, No. 346. State v. Webb, 373 Ark. 65, 281 S.W.3d 273 (2008).
Although defendant had previously reaped the benefits of New Mexico's first-offender statute, under the plain language of § 16-93-302 and this section, defendant had never before availed himself of Arkansas' benefits, nor had he been previously convicted of a felony; thus, defendant's first-offender status should not have been voided. Montoya v. State, 2010 Ark. 419 (2010).
If subdivision (a)(1)(B) of this section applies, then the trial court lacks authority to impose any sentence under subdivision (a)(1)(A). Wilson v. State, 2019 Ark. App. 116 (2019).
Adjudication of Guilt.
Where the judgment entered recited on its face that appellant was found guilty and sentenced under the First Offenders Act, appellant was sentenced illegally. Gage v. State, 307 Ark. 285, 819 S.W.2d 279 (1991).
Bail.
A deferred guilty plea to a felony may be taken into consideration in fixing the amount and conditions of bail, however, the defendant cannot be denied release on bail as a matter of law because of the plea. Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992).
Disposition Not a Conviction.
Because the plain language of Ark. R. App. P. Crim. 1(a) and § 16-91-101(a) required a conviction before a defendant had a right of appeal, and because a disposition pursuant to Acts 1975, No. 346, better known as the Arkansas First Offender Act, §§ 16-93-301 — 16-93-305, was not a conviction, defendant had no right to appeal. Lynn v. State, 2012 Ark. 6 (2012).
Expungement, Sealing.
A trial court does not have the power to expunge a defendant's record when defendant was not sentenced under one of the statutes, such as subdivision (a)(1) of this section, former § 16-93-502, or former § 5-64-407, which specifically provide for expunging the record. Shelton v. State, 44 Ark. App. 156, 870 S.W.2d 398 (1994).
Defendant whose felony conviction was properly expunged under subsection (b) could not be subsequently prosecuted for being a felon in possession of a firearm under § 5-73-103 based on the expunged conviction. State v. Warren, 345 Ark. 508, 49 S.W.3d 103 (2001).
Appellate court affirmed the denial of an inmate's motion to vacate because, in reviewing the lengthy colloquy between the court and the inmate, it was evident that expungement was not part of the individual's plea agreement; moreover, there was no right to expungement under this section. Barnett v. State, 366 Ark. 427, 236 S.W.3d 491 (2006).
Trial court erred in denying defendant's petition to have defendant's criminal record expunged because at the time defendant committed the sexual offenses, this section did not prohibit expungement for sexual offenses where the victim was under 18. Acts 1999, No. 1407, which precluded expungement in those circumstances, was not effective until July 30, 1999, and the act did not indicate that it was to be retroactively applied. McBride v. State, 99 Ark. App. 201, 258 S.W.3d 782 (2007).
Trial court erred in erred in denying defendant's petition to seal his criminal record because when defendant was released early from his probation, the court was statutorily mandated to discharge defendant without an adjudication of guilt and expunge his record. Turley v. State, 2013 Ark. App. 427, 429 S.W.3d 293 (2013).
Although, at the time defendant was sentenced, expungement should have occurred automatically under former subdivision (b)(1) of this section, the circuit court did not err in denying his 2014 petition to seal and in finding that defendant was not entitled to expungement of his 1995 felony conviction as he did not fulfill the terms and conditions of his probation. While defendant was on probation, he was charged with several felony drug counts and admitted to having used marijuana. Because the circuit court did not err in not expunging defendant's 1995 felony conviction, defendant's 1995 conviction was a valid basis for the 2014 felon in possession of a firearm charge. Kimbrell v. State, 2016 Ark. App. 17, 480 S.W.3d 206 (2016).
Right to Jury Trial.
Defendant's right to a trial by jury was not violated by the circuit court's dismissal of his appeal because defendant voluntarily agreed to defer his criminal proceedings and be placed on probation for at least one year; if his probation was successful, he would be discharged without an adjudication of guilt, his case would be dismissed, and his record would be expunged; and if he violated his probation and was adjudicated guilty, he would be able to appeal at that time. Barner v. State, 2015 Ark. 247, 464 S.W.3d 450 (2015).
Violation of Probation.
Presence of marijuana in defendant's apartment was sufficient evidence from which the trial court could determine that defendant violated the terms of his probation. Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ct. App. 1980); Gage v. State, 307 Ark. 285, 819 S.W.2d 279 (1991).
Cited: White v. State, 329 Ark. 487, 951 S.W.2d 556 (1997); White v. State, 330 Ark. 720, 957 S.W.2d 683 (1997); Harrell v. State, 331 Ark. 232, 962 S.W.2d 325 (1998); Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002).